Opinion
20 CIV. 7809 (ALC) (SN)
08-04-2021
ANDREW SCOTT Petitioner, v. LETICIA JAMES, Respondent.
Andrew Scott, Pro Se Shawangunk Corr. Fac.
Andrew Scott, Pro Se Shawangunk Corr. Fac.
TRAVERSE IN RESPONSE TO OPPOSITION
Andrew Scott, is the petitioner in the above-entitled action, and make this Traverse in reply to Respondent's Declaration in Opposition to petitioner's submitted Habeas Corpus Petition presently before the Court.
1. Petitioner litigating Pro Se, and have prepared this Traverse in reply to Respondent's Declaration in Opposition to petitioner's petition on personal knowledge and on information and belief based on records maintained at both the trial, Appellate Court and the District Attorney Office, which petitioner believe to be true and accurate.
2. On or around September 22, 2020, petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 2.
3. On or around October 1, 2020 this honorable court issued an order for respondent to answer. ECF No. 5.
4. On or around February 25, 2021 respondent submitted an answer asserting that (1) two of petitioner's claims are unexhausted; (2) two of petitioner's claims are not cognizable on federal habeas review; (3) the remaining claims are neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. ECF No. 11.
5. In accordance with the Court's Order to Answer, petitioner's reply was due on March 29, 2021. However, instead of submitting a reply, on March 30, 2021, petitioner filed a motion to stay the habeas petition in abeyance while he return to the lower State Courts to exhaust his previously unexhausted claims, and further asked that the district court lift the stay and allow him to proceed in the federal court once his claims are exhausted. ECF No. 12.
6. Petitioner motion to the court to hold the petition in abeyance was denied by the court without prejudice. However, petitioner was granted an extension of time by the court in which to submit a reply, in further support of his petition by no later than May 5, 2021. Petitioner was further directed by the court to address all of respondent's arguments; then thereafter, the court will determine whether to stay the habeas petition in abeyance.
7. Petitioner did not meet the courts deadline of May 5, 2021 in which to filed his reply. However, petitioner filed another letter/motion upon the court respectfully seeking an extension of time in which to complete his reply, and, on or around June 9, 2021, this honorable court granted an extension of time in which petitioner should submit his reply, which was by this court's order no later than September 7, 2021.
8. In accordance to the court's order, petitioner herein submitted this Traverse/reply to respondent's declaration in opposition, and respectfully requested that this honorable court find that all of petitioner's claims are exhausted, in contrary to respondent's arguments, and further respectfully requested that this honorable court issued a ruling upon the merits of each points raised by petitioner on his petition and grant petitioner the relief sought therein.
GROUNDS OF UNCONSTITUTIONALITY OF PETITIONER'S CONVICTION
9. Petitioner is in State custody in violation of the Fourteenth Amendment to the United States Constitution, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of "life, liberty, or property, without due process of the law," or denying any person the "equal protection of the law." These guaranteed rights of the petitioner was violated by the States trial prosecutor during summation of the trial when she make statements to the jury that "even defendant's own trial counsel believe that his client/defendant is guilty of the two counts of murder," (which comment had bring about an unjust conviction.
STATEMENT OF FACTS
10. Petitioner here, will not be reiterating the statements of facts surrounding the his petition, and respectfully directing this honorable court to relied upon the statements of facts submitted in his States Direct Appeal Appellate Brief.
OBJECTION TO RESPONDENT'S ENTIRE DECLARATION IN OPPOSITION
11. For the reasons more fully set forth in petitioner's state direct appeal brief, it is petitioner's position that: the state Appellate courts' decisions denying petitioner's claims related to his right to be present during the Molineux proceedings and at all material stage of his trial, and regarding the misplacement of trial exhibits were clearly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, and further constitute an unreasonable determination of the facts.
12. Additionally, contrary to both respondent and the Appellate court's assertion that petitioner's claims related to the prosecutor's improper summation, and where the trial court erred by not addressing petitioner's pro se CPL § 330.30 motion pursuant to its pre-determined policy to not consider pro se motions and by not appointing petitioner new trial counsel giving his claims against his then trial counsel; that these issues of petitioner is unexhausted and thesrfore precludes this honorable court from entertain them, is incorrect. All of the issues raised in petitioner's direct Appellat brief are exhausted for this courts viewing and rule upon the merits of each claims.
APPLICATION OF THE LAW TO THE FACTS
Memorandum of Law
As can clearly observed from the reading of the respondent's brief submitted to the states Appellate court, and the Appellate court's decision denying petitioner's issues raised on his direct appeal. The states Appellate court completely adapted and relied upon the submissions contain within the states brief in denying petitioner's direct appeal, (no independent evaluation).
Specifically, in its decision to deny petitioner the relief sought regarding the issue pertaining to the improper comments made by the trial prosecutor during its summation, the Appellate court states: "Defendant's challenge to the prosecutor's summation comment regarding purported concessions by defense counsel is unpreserved, and we decline to review it in the interest of justice." The Appellate court further went on to state: "As an alternative holding, we find that the comment was improper (see People v. Levy,
202 A.D.2d 242, 254, 608 N.Y.S.2d 466 [1st Dept. 1994]), but harmless in light of the overwhelming evidence of guilt (see People v. Crimmins,
36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975])."
This decision and ruling by the states Appellate court was clearly contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court concerning the rule concerning state prisoners preservation of issues in state courts. (See, Coleman v. Thompson,
501 U.S. 722).
As the Court in Cotto v. Herbert, 331 F.3d 217 articulates concerning the rules of preservation, when states:
ii. New York's Statute and Case Law
"New York's; preservation rule, codified at N.Y. Criminal Procedure Law § 470.05 (2), specifies that:
[f]or purpose of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal."
In petitioner's case at bar, respondent admits the fact that petitioner's trial counsel did infact lodged an objection to this comment made by the trial prosecutor during her summation, to which objection the trial court overruled (trial transcript at page-790-91).
Here, in considering the claim that the trial prosecutor "improperly implied to the trial jury during her summation that even defendant's own trial counsel admits that he his guilty of the murder charges," the State Appellate court concludes that this contention "was unpreserved for our review." Scott, 172 A.D.3d 543. The Court of Appeals did not comment on this issue.
The question, then, is whether this case falls within "the small category of cases in which [the] asserted state grounds are inadequate to block adjudication of the federal claim" or "in which the exorbitant application of a generally sound rule renders the state ground inadequate" to bar consideration of the federal constitutional claim. (See, Lee v. Kemna,
534 U.S. 362, 376, 381, 122 S.Ct. 877).
In this case, there is no question that the claim procedural bar constitute an "independent" state ground of decision; the dispute is over whether the asserted bar is "adequate" to preclude federal habeas review. "[T]he question of when and how defaults in compliance with state procedural rules can preclude ... consideration of a federal question is itself a federal question." Garcia v. Lewis,
188 F.3d 71, 77 (2d Cir. 1999) (quoting Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981(1988) (internal quotation omitted)); Lee, 534 U.S. at 375, 122 S.Ct. 877 (it is not within the State's prerogative to decide whether a state rule is sufficient to bar consideration of a federal claim; adequacy itself is a federal question). Before accepting a procedural bar defense, a federal court must examine the adequacy of the alleged procedural default. Garcia, 188 F.3d at 77. For although the procedural bar rule rests on considerations of comity, "[s]tate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims." Id. (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421 (1982)). As the court explained in Garcia:
[A] procedural bar will be deemed adequate only if it is based on rule that is firmly established and regularly followed by the state in question. When a federal court finds that the rule is inadequate under this test the rule should not operate to bar federal review. Nonetheless, the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law.Id. (internal citations and quotations omitted).
In petitioner's case at bar, after the prosecutor committed her misconduct during her summation, trial counsel registered his objection to this comment. The question, then, is whether the requirement of an additional objection "firmly established and regularly followed" in these circumstances. The Supreme court has noted that the contemporaneous objection rule rests on "the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interest, and therefore sufficient to preserve the claim for review." Osborne v. Ohio, 495 U.S. 103, 125, 110 S.Ct. 1691 (1990) (quoting Douglas, 380 U.S. at 422, 85 S.Ct. 1074). Like the Lee and Osberne courts, that overall principle, along with the three factors relied upon in Lee, should guides this honorable court's judgment in petitioner's case at bar. Because, if defense counsel had repeated her prior objection, that the trial prosecutor's comment was improper, after the trial court had already overruled her prior objection, there is no reason to believe that the trial court would changed its mind. On the other hand, the likely impact of a further objection involves a certain degree of speculation. Indeed, the purpose of the contemporaneous objection rule is to give the trial court a clear opportunity to correct any error. Therefore, this honorable court should agree with petitioner that, just like in the Lee case, this is not a case where a party failed to appraise the trial court of the ruling sought.
Wherefore, in considering the above mention argument by petitioner, this honorable court should conclude that this issue was, and is properly preserved for this court consideration and adjudication on the merit. Furthermore, other New York cases interpreting the scope of CPL § 470.05(2) undercut respondent's claim. Since the Court's decision in Garcia and the Court of Appeal's decision denying Coto's direct appeal, the Court of Appeals has held that, under similar circumstances to those presented in petitioner's case at bar, an issue of law is preserved even if it is not specifically raised by the defendant so long as the trial court expressly rules on the issue following an earlier objection. In People v. Edwards, 95 N.Y.2d 486, 719 N.Y.S.2d 202 (2000), the Court of Appeals reached the merits of a probable cause issue, decided by the trial court at the close of a suppression hearing. In so doing, the court specifically held that "contrary to the people's contention, the issue of probable cause to arrest is preserved for our review because, in its written decision denying defendant's motion to suppress, the trial court 'expressly decided' the question in response to a 'protest by s party.'" Id. at 491 n. 2, 719 N.Y.S.2d 202 (citing CPL § 470.05(2)).
Intermediate Appeallate courts in New York have followed the same principle. See, e.g., People v. Ayala,
142 A.D.2d 147, 157, 534 N.Y.S.2d 1005, 1011 (2nd Dept. 1988), aff'd, 75 N.Y.2d 422, 554 N.Y.S.2d 412 (1990) (in cases where "protest" was made by the government, issue pressed by defense on appeal was still preserved because "a question of law is preserved if the point was expressly decided by the trial court in response to a protest, even though the protesting party overlooked that argument when making the protest") (quoting Preiser, Supp. Practice Commentaries, Mckinney's Cons. Laws of N.Y., Book 11A, CPL § 470.05, 1988 Pocket Part, at 5); People v. Seabrook, 241 A.D.2d 325, 326, 659 N.Y.S.2d 463, 464 (1st Dept 1997) (defense counsel's motion to share responsibilities with counsel for co-defendant preserved issue of law as to all parts of ruling despite failing to specifically object); People v. Duncan, 177 A.D.2d 187, 190-91, 582 N.Y.S.2d 847, 849-50 (4th Dept 1992) (defendant's litigation of Batson hearing preserved issue of law as to ruling on prosecutor's peremptory challenges); People v. Johnson, 144 A.D.2d 490, 491, 534 N.Y.S.2d 207, 209 (2d Dept 1988) (defense objection to the admissibility of photographs preserved issue of law as to whether they were admissible under collateral evidence rule, even though the ground was not specifically raised at trial).
In short, CPL § 470.05 and the governing New York caselaw does not indicate that petitioner was required to make an additional objection after the court had already overruled his initial objection in order to preserve this violation committed by the trial prosecutor for appellate review. Therefore, petitioner's relief sought on this claim should be granted and a new trial ordered. (See, Cotto v. Herbert, supra
).
THE TRIAL COURT'S DECISION DENYING PETITIONER'S PRO SE MOTION FOR NEW COUNSEL AND HIS CPL § 330.30 WERE CONTRARY TO, OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW AS DETERMINED BY THE UNITED STATES SUPREME COURT.
13. In its ruling on this issue, the Appellate Division totally recites respondent's argument presented in its opposing brief to petitioner's brief when states: "The court providently exercised its discretion when it declined to consider defendant's pro se CPL 330.30 motion to set aside the verdict. Defendant was represented by counsel, and had no right to hybrid representation." The Appellate Court then went on to cite People v. Rodriguez, 95 N.Y.2d 497, 501-503 [2000].
As could clearly be noted by the court, this case (People v. Rodriguez) relied upon by both respondent and the Appellate court in denying petitioner's claim on this issue, is distinguishable and inapposite from what occurred in petitioner's case at bar. As could be notice in the Rodriguez case, there, the defendant's CPL 330.30 was not filed against his trial counsel claiming that counsel was ineffective. But rather, his CPL 330.30 motion was based upon his right to a speedy trial ground (totally distinguishable) from petitioner's issue at bar. Wherefore, as correctly stated by appellate counsel on petitioner's direct appeal brief, the Appellate court was incorrect when rule that the trial court did not reject the CPL 330.30 motion based on a blanket policy of not considering pro se motions, but on the ground that defense counsel declined to adopt this motion.
Appellate counsel correctly argues that, because the motion alleged, in pertinent part, ineffective assistance of trial counsel, it would most definitely be made pro se, and would have bin natural for trial counsel to decline to adopt a motion brining short comings against his or her self. And it was clear that in petitioner so doing in bringing this motion against his trial counsel, this clearly creates a conflict of interest situation. Furthermore, it was an abuse of the court's discretion to pre-determine a policy, and essentially refuse to exercise its discretion. Once the court was on notice about petitioner's motion, and trial counsel refused to adopt it, the court was alerted that counsel was conflicted, and the court should have appointed new counsel.
The law is clear, the decision to entertain pro se motions by a represented defendant is ordinarily within the court's discretion. People v. Rodriguez, 95 N.Y.2d at 502 (holding that "it is a matter committed to the sound discretion of the trial judge"). However, that discretion must not be abused. See Id. (recognizing that there may be circumstances where such discretion is abused). A flat denying all pro se motions is clearly improper and constitute an abuse of discretion. See, People v. Delgado,
281 A.D.2d 556 (2d Dep't 2001) (holding that the trial court improperly denied defendant's pro se CPL § 30.30 motion "by stating, without more, that it denied all pro se motions"). Indeed, "[t]he term 'discretion' implies the absence of a hard-and-fast rule. The establishment of a clearly defined rule of action would be the end of discretion." The Styria v. Morgan, 186 U.S. 1, 9 (1902) (emphasis omitted).
The Court of Appeals has been cle ar that "there must be a basis of fact or circumstance," for the exercise of a court's discretion, Re Superintendent of Banks, 207 N.Y. 11, 15 (1912), and that intervention is required "where the trial court has either abused its discretion or exercised none at all." See, People v. Smith,
27 N.Y.3d 652, 663 (2016) (emphasis added) (citation and internal quotation marks omitted).
Wherefore, for the reasons more fully set forth in petitioner's direct appeal brief and its accompanying memorandum of law, it is petitioner's position that: the state courts decisions denying petitioner's claims related to the above mention violation, and regarding the improper summation by the trial prosecutor were contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, and was further an unreasonable determination of the facts. (See, Coleman v. Thompson, 501 U.S. 722; Cotto v. Herbert, 331 F.3d 217); (see also Exhibit-1 attached to respondent's opposition, pet's brief).
Therefore, this honorable should review each and every claim raised by petitioner in his submitted habeas petition on the merits, and grant petitioner the relief he requested therein.
AS TO ALL THE OTHER ISSUES/CLAIMS RAISED IN PETITIONER'S DIRECT APPEAL BRIEF TO THE STATES APPELLATE COURT, PETITIONER WILL NOT BURDEN THE COURT WITH FURTHER ADDITIONAL WRITINGS, AND RESPECTFULLY REQUESTED THAT THIS HONORABLE COURT ALLOWS PETITIONER TO RELIED UPON THE ARGUMENTS, FACTS AND LAW AS THEY ARE PRESENTED IN HIS DIRECT APPEAL BRIEF.
14. As explained above, in saving the court from excessive reading, petitioner herein respectfully relied upon the claims and issues raised in his direct appeal brief for this court to consider as if raised herein. The issues/claims petitioner is referring to is as follows: (1) petitioner's right to be present at all material stage of his trial was violated when he was excluded from the trial court's E-Mail correspondence; (2) petitioner was entitled to a hearing on the lawfullness of his arrest and the trial court's erred by summarily denying his motion when the state provided no response to said motion by the petitioner; (3) the People failure to retain trial exhibits irreparably damage petitioner's ability to effectively appeal his conviction.
FAILURE OF THIS COURT TO CONSIDER THE ISSUES PRESENTED IN PETITIONER'S PETITION WILL RESULT IN A FUNDAMENTAL MISCARRIAGE OF JUSTICE HEREIN
15. Although petitioner herein believed that he had complied with the states preservation procedural rules (Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558), should this honorable court decided otherwise, petitioner herein respectfully requested that this court exercise it judicial power and review any default claim presented herein by petitioner, under the miscarriage of justice review.
This request by petitioner is made due to the fact that, should this court ruled that any of petitioner's issues presented to the court is in default, there lies no other vehicle or avenue available to petitioner for his to present such issues/claims and have them exhausted. (See, Coleman v. Thompson,
501 U.S. 722; Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2644).
Alternatively, should this honorable court decided that petitioner could in fact return to the state courts on a post-conviction motion and present any-claimed unexhaust or default issues/claims, petitioner herein respectfully requested that this honorable court held his habeas corpus petition in abeyance, and allow petitioner to return to the state courts and exhaust such issues/claims. (See, Ortiz v. Barkley,
489 F.Supp.2d 369; Jiggetts v. Mark, 2020 WL 5549703).
CONCLUSION
In concluding, petitioner herein prays this honorable court find that all the issues presented in petitioner attached direct appeal brief to his writ of heabas corpus petition, is properly preserve and properly presented to this court to be considered upon their merits. Additionally, petitioner prays this honorable court, after reviewing these claims find that petitioner constitutional rights was violated by the violations committed during his trial and appeals, and in so concluding, petitioner prays that this court reversed the lower state courts findings and order a new trial for petitioner or alternatively, ordered that a hearing be conducted to asset the facts of the matter raised, and for any and other relief as this honorable court deemed fair and proper under the laws of the state.
Petitioner declare under the penalty of perjury that the foregoing is true and correct.